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Court of AppealStruck OutCivil Appeal 273 of 2001· [2005] KECA 321 (KLR)

Stephen Kinoro Kamau v Wanjiku Kinuthia & another [2005] KECA 321 (KLR)

Court of Appeal
14 October 2005
723 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because the notice of appeal was served three days late, confirming weekends count in seven-day deadlines.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Omolo, O'Kubasu and Deverell, JJ.A.) delivered on 14th October 2005 in Civil Appeal 273 of 2001, an appeal by Stephen Kinoro Kamau against Wanjiku Kinuthia and Nyakiega Kinuthia, administrators of the estate of Kinuthia Kariuki (deceased), from the judgment of Angawa, J. of 19th October 2000 in H.C.C. Miscellaneous Application No. 2360 of 1995 (O.S.). Before the Court was a notice of motion under rules 42 and 80 of the Court of Appeal Rules in which the applicants sought to strike out the appeal on the ground that the notice of appeal was served out of time contrary to rule 76(1), which requires service on all persons directly affected before or within seven days after lodging the notice. Counsel for the appellant argued, invoking rule 3(a), that because 28th October 2000 was a Saturday, time began to run on Monday 30th October 2000. The Court rejected this, holding that rule 3(d) confines the exclusion of days to periods not exceeding six days; the seven-day service period is longer, so neither Saturday 28th nor Sunday 29th October was excluded. Counting from 28th October, the seventh day was Friday 3rd November 2000, and service on Monday 6th November was three days late. Counsel's late attempt to invoke rule 4 (extension of time) was rebuffed as being in the wrong forum before the full Court. The application was allowed: the appeal was struck out, with the costs of the application and of the appeal awarded to the applicants. The High Court decision was not disturbed on the merits, as the appeal ended on this procedural point. The ruling binds lower courts on the computation of the seven-day service period under rule 76(1), the limited scope of rule 3(d), and the forum for rule 4 applications.

Key legal issues

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01

Computation of the seven-day service period under rule 76(1) - whether Saturdays and Sundays are excluded.

Holding

The seven-day service period is not a 'short period' under rule 3(d), so no days are excluded. Saturday 28th and Sunday 29th October 2000 counted as the first two days, making Friday 3rd November 2000 the seventh day; service on Monday 6th November was three days late.

Reasoning

On the Court's reading, rule 3(d) governs the exclusion of days and applies solely where the period fixed does not exceed six days. Because rule 76(1) prescribes seven days for service of the notice of appeal, that exclusionary provision is not engaged, there is no rule giving Saturdays special treatment, and the Sunday here was not the last day of the period. The Court therefore counted 28th October (Saturday) as day one and 29th October (Sunday) as day two, reaching Friday 3rd November as the seventh day, so service on Monday 6th November was three days out of time.

p. 3
02

Scope of rule 3(d) - exclusion of days in short periods.

Holding

Rule 3(d) applies only to periods not exceeding six days; within such a short period, any Sunday or public holiday falling within it is not reckoned in computing time.

Reasoning

The Court construed rule 3(d) as confined to short periods of not more than six days and illustrated its operation: if a document must be served within five days of the delivery of a court order and one of those five days is a Sunday or public holiday, that day is not counted in arriving at the fifth day. A seven-day period prescribed by rule 76(1) falls outside the rule, so Saturdays and Sundays within it are reckoned, subject to any express provision to the contrary in the Rules.

p. 2
03

Consequence of serving the notice of appeal out of time.

Holding

An appeal in which the notice was served beyond the seven days prescribed by rule 76(1) will be struck out on an application under rules 42 and 80; the Court held it had no alternative but to allow the application.

Reasoning

With computation settled, the facts were undisputed: the notice lodged on 27th October 2000 was served on Monday 6th November when the last lawful day was Friday 3rd November, three days out of time. The Court treated the breach as leaving it no discretion on the material before it, describing the application as one that could not be resisted, and struck out the appeal. Counsel's mid-hearing attempt to invoke rule 4 extension of time failed because the full Court was the wrong forum for such relief, leaving the defect uncured.

p. 3
04

Forum for an application for extension of time under rule 4.

Holding

The full Court, seized of a striking-out application under rules 42 and 80, is the wrong forum in which to seek an extension of time under rule 4; such an application lies in the forum designated for it under the Rules.

Reasoning

When counsel for the appellant, opposing the striking-out application, sought to introduce extension of time under rule 4, the Court declined to entertain the idea, stating that he was in the wrong forum as regards extension of time under rule 4. The point establishes that a rule 4 extension cannot be procured incidentally from the full Court hearing a striking-out motion. The remark was ancillary to the primary holding on computation and late service and was not itself the basis of the final order striking out the appeal.

p. 3

Legal principles established

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  • Rule 3(d) of the Court of Appeal Rules confines the exclusion of days (Sundays and public holidays) to periods of not more than six days; where the prescribed period is longer, such as the seven-day service period under rule 76(1), Saturdays and Sundays count towards the period unless the rule expressly provides otherwise.
  • An intended appellant must serve copies of the notice of appeal on all persons directly affected before or within seven days after lodging it; service beyond that period exposes the appeal to being struck out on application under rules 42 and 80.
  • The full Court seized of an application to strike out an appeal is not the forum in which to seek an extension of time under rule 4 of the Court of Appeal Rules.

Court orders

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  1. 1.The appeal filed in Civil Appeal 273 of 2001 is struck out.
  2. 2.The applicants are awarded the costs of the application.
  3. 3.The applicants are awarded the costs of the appeal.

Authorities

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Legislation

  • Court of Appeal Rulesrule 3(a)
  • Court of Appeal Rulesrule 3(d)
  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 42
  • Court of Appeal Rulesrule 76(1)
  • Court of Appeal Rulesrule 80
On appeal from
High Court of Kenya at Nairobi
H.C.C. Miscellaneous Application No. 2360 of 1995 (O.S.)
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal in Civil Appeal 273 of 2001 from the High Court at Nairobi; the interlocutory application before the Court was brought under rules 42 and 80 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Stephen Kinoro Kamau v Wanjiku Kinuthia & another [2005] KECA 321 (KLR)", Case Analysis (2005). Civil Appeal 273 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/321/eng@2005-10-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.